Monday, January 05, 2009


The justices have accepted the case that began with a lawsuit filed by out-of-state students and their parents, who argue that such a benefit violates federal law.

By Anna Gorman | From the Los Angeles Times

January 5, 2009 -- California's highest court is poised to be the next battleground in the debate over benefits for illegal immigrants as the justices have agreed to hear arguments on the constitutionality of a state law allowing undocumented students to pay in-state tuition at public colleges and universities.

The decision could affect hundreds of illegal immigrant students who attend community colleges, Cal State and UC campuses and who say they would not be able to afford a higher education if required to pay out-of-state tuition, which can cost more than triple the amount that residents pay.

But the outcome could have a broader effect -- at least nine other states, including Oklahoma, New York and Texas, have similar laws providing the reduced fees to illegal immigrants. Although a court decision would not be legally binding in other states, politicians around the country are looking at California as a litmus test for future legal challenges.

The state Supreme Court accepted the case late last month and will probably hear arguments later this year.

In a letter urging the high court to take up the case, Utah's Atty. Gen. Mark Shurtleff wrote, "The implications of this decision extend far beyond California, and far beyond a state's ability to set educational policy, into the heart of the national debate about illegal immigration."

Martinez vs. Regents of the University of California began with a lawsuit filed in Yolo County in 2005 by out-of-state students and their parents. The lawsuit alleges that education officials are violating federal law by granting in-state tuition to illegal immigrants while not offering the same lower fees to students from outside California.

"U.S. citizens should have at least the same rights as undocumented immigrants," said one of the plaintiffs, Aaron Dallek, an Illinois native who graduated from UC Berkeley in 2006.

Another plaintiff, 2006 UC Davis graduate Onson Luong, said he didn't think it was fair that he, as a native of Nevada, had to pay higher tuition than illegal immigrants. Luong, who majored in biotechnology, worked two jobs during college and owes $15,000 in student loans.

"If they are allowing illegals to pay in-state tuition when they aren't even citizens, what kind of message is that sending?" Luong asked.

For the 2008-09 school year, out-of-state undergraduates pay about $28,600 to attend a UC school, compared with about $8,000 for students who qualify for in-state tuition. Out-of-state undergraduate students at Cal State campuses pay on average $10,000 more than in-state students. At community colleges, California residents pay $26 per unit, while out-of-state students pay between $140 and $170.

Cora Orta, an illegal immigrant from Mexico who is a senior at UCLA, said she could not afford the school if she had to pay the higher tuition. As it is, the in-state fees are a stretch, she said. She is not eligible for loans, so she works part time, crams into a studio apartment with four other students and constantly applies for scholarships.

"It's been the difference between attending college or not attending," Orta said of the in-state tuition.

Matias Ramos, who graduated from UCLA last year, said the out-of-state costs exceed the annual family income for many illegal immigrant students. Ramos, an illegal immigrant from Argentina, said that such students who attend public California colleges and universities are accepted based on their academics, talents and involvement and shouldn't be penalized because of a broken immigration system that leaves them few options.

The California Supreme Court case revolves around a 2001 state law, known as AB 540, that permits the tuition breaks. Under the law, illegal immigrant students qualify for in-state rates if they attended a California high school for three years, graduated here and signed an affidavit saying they will apply for permanent residency as soon as they are eligible. The law has remained in effect during the legal challenge.

Michael Brady, who represents the out-of-state students and their parents in the case, said California is "completely undermining the intent of Congress" and that the state law should be invalidated because it violates federal immigration law that prohibits states from providing college benefits to illegal immigrants based on residency unless all U.S. citizens are eligible for the same benefits.

Brady said that in passing the strict immigration law in 1996, Congress sought to deter people from coming to the U.S. and staying here illegally.

"When public benefits are provided, it encourages people to stay here," Brady said. "That is why we have all these laws."

But Ethan Schulman, who represents the University of California, said California's law was carefully crafted so it complied with federal law. U.S. citizen students are also eligible for in-state tuition, if, for example, they are from another state but attended a boarding school in California or if they attended high school here but then moved away for college and returned to the state for graduate studies.

In the 2006-07 school year, 1,639 UC undergraduate and graduate students received in-state tuition under AB 540 provisions. Of those, about 70% were here legally, while the others were potentially undocumented, in the process of obtaining residency or their status could not be determined, according to university officials.

Schulman defended the benefit as a way for illegal immigrant students who have excelled in the state's high schools to attend college. Schulman said he recognized, however, that the controversy wasn't just over the relatively small number of students who receive the tuition break.

"The larger issue is a political issue, and that is how undocumented immigrants who live and work in our state are to be treated," Schulman said.

The undocumented students also have long-standing ties to California and have worked hard to make a better life for themselves and their families, often overcoming substantial obstacles, said Nicholas Espiritu, staff attorney for the Mexican American Legal Defense and Educational Fund, also involved in the case.

"They have earned the right to be there," Espiritu said. "These are students who are coming from, oftentimes, very low-income areas and underperforming schools, who are finding ways to really achieve and succeed in education despite almost every roadblock imaginable being put in their path."

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